Private Foundation in the United States

The private foundation in the United States is an institution operated exclusively to further its charitable purpose, we often think about philanthropy’s ability to make grants, convene, and build partnerships, but don’t always consider its investment capabilities. Traditionally, a foundation has viewed its financial resources as two distinct pots of capital: funds set aside for grants that further charitable purposes, but are not repaid; and funds dedicated to investments, which provide a financial return and maintain the value of the endowment as an ongoing source for future philanthropic activity. Increasingly, foundations are realizing the benefits of tools for funding charitable projects that do not neatly fall in one category or the other. In recent years, foundation leaders, philanthropy associations, and impact investing coalitions have sought guidance regarding how they can make investments for both charitable purposes and financial returns while staying within the tax rules for foundation investments.

Types of Private Foundations

In general, at least in relation to the tax law of the United states, a private foundation is any section 501(c)(3) organization that is not in one of the categories of public charities specifically excluded from the definition of that term. Some tax law provisions apply to all private foundations. Others, however, are more narrowly focused on particular types of private foundations. For tax purposes, it may be necessary to distinguish between the following types of foundations:

Private operating foundations
Exempt operating foundations
Grant-making foundations

Legal constraints in the United States: Private foundation rules

Under the United States tax law, every organization that qualifies for tax exemption as an organization described in section 501(c)(3) is a private foundation unless it falls into one of the categories specifically excluded from the definition of that term (referred to in section 509(a)). In addition, certain nonexempt charitable trusts are also treated as private foundations. Organizations that fall into the excluded categories are institutions such as hospitals or universities and those that generally have broad public support or actively function in a supporting relationship to such organizations.

Even if an organization falls within one of the categories excluded from the definition of private foundation, it will be presumed to be a private foundation, with some exceptions, unless it gives timely notice to the IRS that it is not a private foundation. If an organization is required to file the notice, it generally must do so within 27 months from the end of the month in which it was organized. Generally, organizations use Form 1023, Application for Recognition of Exemption, for this purpose.

Incremental regulatory initiatives

Tax Reform Act of 1969

The Tax Reform Act of 1969 established private foundation rules, including a minimum charitable payout requirement and a 4-percent excise tax on net investment income, and raised the limitation on the deduction for donations to operating private foundations and public charities to 50 percent of adjusted gross income (AGI).

In the Tax Reform Act of 1969, Congress not only created a number of distinctions between public charities and private foundations, it also introduced the subclassification private “operating foundation”. A private operating foundation is a foundation that enjoys certain advantages available to public charities, but in all other respects is treated as a private foundation.

These organizations are called private operating foundations because they are private foundations that actively conduct their own charitable, educational, or other exempt programs and activities. Examples of operating foundations include museums, zoos, research facilities, libraries, etc. In contrast, a private foundation that principally provides grants to other entities or to individuals for charitable or other exempt purposes would not qualify as an operating foundation, and instead would be called a “nonoperating foundation”.

Under the Act, operating foundations are subject to all rules applicable to nonoperating foundations except as specifically provided in the Internal Revenue Code and applicable regulations. Thus, the taxes and requirements of IRC 4940, 4941, 4943, 4944, and 4945 are fully applicable to operating foundations as well as nonoperating foundations.

By the 1960s, there was a growing perception among lawmakers that private foundations, with their small networks of financers and administrators, were less accountable to the public than traditional charities. These concerns were addressed with the Tax Reform Act of 1969 (TRA69), which introduced sweeping reforms to the charitable sector. TRA69 also significantly expanded the rules governing unrelated business income taxation of tax-exempt entities. The first explicit definition of private foundations, for tax purposes, was included in TRA69. This legislation defined a foundation as a charitable organization that did not engage in inherently public activities, test for public safety, receive substantial support from a wide array of public sources, or operate in support of any organization that met any of these three requirements. Organizations that conduct “inherently public activities” include churches, schools, hospitals, and Governmental units of the United States. For additional information, see Richardson, Virginia G. and John Francis Reilly, “Public Charity or Private Foundation Status Issues under 509(a)(1)-(4), 4942(j)(3), and 507, Fiscal Year 2003,” Exempt Organizations Continuing Professional Education.

Further, the legislation created two subclasses of private foundations—nonoperating and operating. Nonoperating foundations, which represented the majority of all private foundations, were defined as primarily grantmaking organizations. Conversely, operating foundations were those that operated charitable programs in a manner similar to that of public charities. TRA69 established an array of more stringent requirements specific to private foundations. These “private foundation rules” outlined two annual requirements and a variety of “prohibited activities” that were considered to be contrary to the public interest. First, TRA69 established an annual excise tax on investment income. This provision was intended to compel private foundations to “share some of the burden of paying the cost of government,” particularly the enforcement of regulations related to the tax-exempt sector. Staff report of the Joint Committee on Taxation, “General Explanation of the Tax Reform Act of 1969” (JCS-16-70) (December 3, 1970), p. 29.

Second, nonoperating foundations were required to distribute a minimum amount for charitable purposes each year. Further, private foundations that failed to meet the minimum charitable distribution requirement or engaged in certain prohibited activities were subject to taxes and other sanctions. TRA69 also increased the existing charitable deduction limits for individual donors and sharpened the definitions of the organizations to which contributions were deductible. Under the Revenue Act of 1964, individuals could deduct contributions made to public charities up to 30 percent of adjusted gross income. The new regulations enacted under TRA69 increased the maximum deduction limitation for cash and ordinary income contributions to 50 percent for public charities and operating foundations. Most nonoperating private foundations remained subject to a lower 20-percent limitation. Deduction limitations for cash and ordinary income contributions to nonoperating foundations later were increased to 30 percent of adjusted gross income as part of the Deficit Reduction Act of 1984.

TRA69 also expanded the tax on unrelated business income, extending the tax to all tax-exempt organizations described in IRC sections 501(c) and 401(a) (except United States instrumentalities), and including churches for the first time. Additionally, TRA69 expanded the taxation of debt-financed income to include forms of income other than rents from real estate sale-leaseback arrangements.12 Since 1969, Congress has made a number of changes to the UBIT statutes. However, the rules on unrelated business taxation of tax-exempt organizations established by the Revenue Act of 1950 and TRA69 have remained largely intact.

Other “reform” legislation

Major Exempt Organization Legislation in the United States include:

Tariff Act of 1894 – Earliest statutory reference to tax exemption for certain organizations.
Revenue Act of 1909 – Introduced language prohibiting private inurement.
Revenue Act of 1913 – Established income tax system with tax exemption for certain organizations.
Revenue Act of 1917 – Introduced individual income tax deduction for charitable donations.
Revenue Act of 1918 – Estate tax deduction for charitable bequests added.
Revenue Act of 1934 – Set limits on lobbying activities by charitable organizations.
Revenue Act of 1936 – Introduced corporate tax deduction for charitable contributions.
Revenue Act of 1943 – Required first Forms 990 to be filed.
Revenue Act of 1950 – Established unrelated business income tax.
Revenue Act of 1954 – Modern tax code established, including section 501(c) for exempt organizations. Also, limits on political activities established.
Revenue Act of 1964- Raised the limitation on deduction for donations to public charities to 30 percent of adjusted gross income.
Revenue Act of 1978 – Reduced the net investment income excise tax for private foundations to 2 percent.
Deficit Reduction Act of 1984 – Raised the limitation on the deduction for donations to nonoperating private foundations to 30 percent of adjusted gross income and introduced other more favorable rules for donors to these organizations. Also, exempted certain operating foundations from the net investment income tax and reduced the tax to 1 percent for foundations meeting other requirements.
Revenue Reconciliation Act of 1993 – Imposed a proxy tax on certain lobbying and political expenditures made by membership organizations.
Tax Payer Bill of Rights 2 (1996) – Introduced intermediate sanction rules for excess benefit transactions. Tax Payer Relief Act of 1997 – Revoked tax exemption of certain organizations providing commercial-type insurance.
Pension Protection Act of 2006 – Required section 501(c)(3) organizations to make their Forms 990-T available for public inspection

While the underlying structure of tax exemption for the charitable and voluntary sector has changed little since the passage of TRA69, subsequent legislation has introduced a number of modifications. These include adjustments to the private foundation net investment income tax rates and to the excise tax rates on charitable organizations that engage in prohibited activities. Further changes have provided new exceptions to UBIT taxation for specified activities, tightened the rules pertaining to the taxation of payments received from subsidiaries, and required unrelated business income tax returns filed by IRC section 501(c)(3) organizations to be made publicly available.

Creation of the Foundation: More Regulations

A nonprofit organization may be created as a corporation, a trust, or an unincorporated association. Any of these entities may qualify for exemption. Note, however, that a partnership generally may not qualify.

To qualify for exemption under section 501(c)(3), an organization must be organized exclusively for purposes described in that section. This means, among other things, that the organization’s organizing document must contain certain provisions. The IRS provides sample organizing documents that contain the required provisions. To help ensure that your organizing documents comply with the requirements for exemption, you can seek help from the IRS. In order to file for recognition of tax-exempt status, you must apply for and receive an employer identification number even if you do not have employees (see below). And though not necessarily required under federal tax law, most organizations adopt by-laws (see below).

Organizing Documents

The trust instrument, corporate charter, articles of association, or other written instrument by which the organization is created under state law.

By-Laws

By-laws are an organization’s internal operating rules.

State law may require nonprofit corporations to have by-laws, and nonprofit organizations generally find it advisable to have internal operating rules. Federal tax law does not require specific language in the by-laws of most organizations. For additional information on state law requirements, you may want to contact your state officials.

Employer Identification Number

Every foundation must have an employer identification number, even if it will not have employees. The employer identification number is a unique number that identifies the organization to the Internal Revenue Service. Please note that the employer identification number is not your “tax-exempt number”. That term generally refers to a number assigned by a state agency that identifies organizations as exempt from state sales and use taxes. You should contact your state revenue department for additional information about “tax exempt numbers”.

To apply for an employer identification number, the foundation should obtain Form SS-4 and its Instructions. The private foundation may also apply for an employer identification number on-line.

Future trends

Administrative initiatives

The IRS remains subject to criticism for not doing enough. For example, one of its former top managers, Mr. Marc Owens, now a prominent Washington, DC tax lawyer set forth a lengthy “bill of particulars” in a lengthy article in The Chronicle of Philanthropy. (Williams, “Former IRS Nonprofit Watchdog Seeks to Retool Government Oversight of Charities, The Chronicle of Philanthropy (October 29, 2009))

State legislative initiatives

The Uniform Law Commission, which operates as part of The National Conference of Commissioners on Uniform State Laws, has been addressing the perceived absence of regulation of charities at the state level through one of its committees. Following a meeting in April, 2011, the Committee circulated for comment a draft “Protection of Charitable Assets Act.” Among other things, the draft Act required charities and others holding charitable assets to register with the State’s Attorney General in any state where charitable assets are located so that the Attorney General “will have basic information about the charitable assets which the Attorney General has a duty to protect.”

The committee gave the following reasons for this registration requirement:

“First, the list of registered charities can serve as a quick resource of information for the Attorney General and for the public.

“Second, a potential donor may consult the list of registered charities to determine whether a charity requesting a donation is current is filings with the Attorney General.

“Finally, the requirement to register serves as a reminder to someone organizing a charity of the seriousness of the fiduciary role individual undertakes when acting as a director or trustee of a charity.”

The pattern for growing regulation is a familiar one: articulate new duties, impose new requirements, all in the name of transparency and full disclosure. It might also be appropriate for someone to ask whether layering regulatory requirement upon requirement might have a negative effect on charitable formation and giving. Additional disclosure regimes should be expected to present yet another barrier for families were considering establishing private foundations.

Other trends

Excise tax on investment income

Internal Revenue Code section 4940 imposes an excise tax of 2 percent on the net investment income (it is the amount by which the sum of gross investment income and the capital gain net income exceeds the allowable deductions) of most domestic tax-exempt private foundations, including private operating foundations. Some exceptions apply. An exempt operating foundation is not subject to the tax. Further, the tax: is reduced to 1 percent in certain cases.

This tax must be reported on Form 990-PF, Return of Private Foundation. Payment of the tax is subject to estimated tax requirements. For more information concerning payment of estimated tax, see the Instructions for Form 990-PF. Nonexempt private foundations are also subject to this tax, but only to the extent that the sum of the 2 percent tax plus tax on unrelated business income, applied as if the foundation were tax-exempt, is greater than income tax liability for the year.

To calculate the net investment income, tax-exempt interest on governmental obligations and related expenses are excluded.

Self-dealing

The following transactions are generally considered acts of self-dealing between a private foundation and a disqualified person:

Sale, exchange, or leasing of property,
Leases (but see Certain Leases, under Exceptions to Self-Dealing)
Lending money or other extensions of credit,
Providing goods, services, or facilities,
Paying compensation or reimbursing expenses to a disqualified person,
Transferring foundation income or assets to, or for the use or benefit of, a disqualified person, and
Certain agreements to make payments of money or property to government officials.

In addition, the United States law prohibits indirect self-dealing. Thus, transactions between organizations controlled by a private foundation may also be taxable self-dealing.

Certain transactions between a private foundation and a disqualified person are not considered self-dealing:

Providing goods, services, or facilities by a private foundation to a disqualified person
Paying compensation or reimbursing of expenses by a private foundation to a disqualified person
Certain recapitalization transactions
Certain payments to government officials
Certain leases
Certain dispositions required by excess business holdings rules

If a transaction is determined to be self-dealing, there is generally only one act of self-dealing. If the transaction involves leasing property, lending money or other extension of credit, other use of money or property, or payment of compensation, the transaction will be treated as an act of self-dealing on the day the transaction occurs and as an act of self-dealing on the first day of each tax year or part of a year within the taxable period that begins after the year in which the transaction occurs.

If a transaction involves joint participation by two or more disqualified persons, the transaction will be treated as a separate act of self-dealing for each individual.

For purposes of terminating tax-exempt status and for determining a foundation manager’s liability for penalties for repeated, willful or flagrant disregard of self-dealing prohibitions, however, the transaction will be treated as only one act of self-dealing. An individual and one or more members of the individual’s family will be treated as one person regardless of whether a member of the family is a disqualified person. The liability imposed on a disqualified person and one or more members of the individual’s family for joint participation in an act of self-dealing is joint and several.

Fair market value of a specific asset is determined under the rules discussed, in this legal encyclopedia, in Valuation of Assets.

Distributable amount

Distributable amount is equal to the minimum investment return of a private foundation reduced by the sum of any income taxes and the tax on investment income, and increased by:

Amounts received or accrued as repayments of amounts taken into account as qualifying distributions for any tax year,
Amounts received or accrued from the sale or other disposition of property to the extent that the acquisition of the property was considered a qualifying distribution for any tax year, and
Any amount set aside for a specific project to the extent the amount was not necessary for the purposes for which it was set aside.

If a private foundation has income from distributions from a split-interest trust attributable to the income portion of amounts placed in trust after May 26, 1969, this income is included in the distributable amount.

If a split-interest trust distributes income from amounts placed in trust both on or before and after May 26, 1969, these distributions must be allocated between those amounts placed in trust during these periods to determine the extent to which the distributions are included in the foundation’s distributable amount.

Generally, a private foundation does not have to distribute an amount greater than required for any tax year if for that year the entire corpus of the split-interest trust making distributions to the foundation had been taken into account by the foundation as an asset used in figuring minimum investment return.

Excess business holdings

The excess business holdings of a foundation are the amount of stock or other interest in a business enterprise that exceeds the permitted holdings. A private foundation is generally permitted to hold up to 20 percent of the voting stock of a corporation, reduced by the percentage of voting stock actually or constructively owned by disqualified persons. There are two exceptions to this rule:

If one or more third persons, who are not disqualified persons, have effective control of a corporation, the private foundation and all disqualified persons together may own up to 35 percent of the corporation’s voting stock. Effective control means the power, whether direct or indirect, and whether or not actually exercised, to direct or cause the direction of the management and policies of a business enterprise. It is the actual control which is decisive, and not its form or the means by which it is exercisable.
A private foundation is not treated as having excess business holdings in any corporation in which it (together with certain other related private foundations) owns not more than two percent of the voting stock and not more than two percent of the value of all outstanding shares of all classes of stock.

Nonvoting stock (or capital interest for holdings in a partnership or joint venture) is a permitted holding of a foundation if all disqualified persons together hold no more than 20 percent (or 35 percent as described earlier) of the voting stock of the corporation. All equity interests which are not voting stock shall be classified as nonvoting stock.

Other Issues:

Interest in sole proprietorships. A private foundation is not permitted any holdings in sole proprietorships that are business enterprises unless they were held before May 26, 1969, or acquired by gift or bequest thereafter.
Attribution of business holdings. For determining the holdings in a business enterprise of either a private foundation or a disqualified person, any stock or other interest owned directly or indirectly by or for a corporation, partnership, estate, or trust is considered owned proportionately by or for its shareholders, partners, or beneficiaries. (This rule does not apply to certain income interests or remainder interests of a private foundation in a split-interest trust.)
Dispositions of certain excess holdings within 90 days. A private foundation that acquires excess business holdings, other than as a result of a purchase by the foundation, will not be subject to the taxes on excess business holdings if it disposes of the excess business holdings within 90 days from the date on which it knows, or has reason to know, of the event that caused it to have the excess holdings. This 90–day period will be extended to include the period during which a foundation is prevented by federal or state securities laws from disposing of the excess business holdings. The 90–day disposition period applies, for example, when a disqualified person acquires additional holdings. The amount of holdings the foundation must dispose of is not affected by disposals by disqualified persons during the 90–day period.

Taxes: Jeopardizing Exemption

Like all 501(c)(3) organizations, a private foundation will jeopardize its 501(c)(3) exemption if it ceases to be operated exclusively for exempt purposes. A foundation will be operated exclusively for exempt purposes only if it engages primarily in activities that accomplish the exempt purposes specified in section 501(c)(3). A foundation will not be so regarded if more than an insubstantial part of its activities does not further an exempt purpose. Like other exempt organizations, a private foundation loses its tax-exempt status if it does not file an annual return for three consecutive years.

In addition, like all section 501(c)(3) organizations, a private foundation:

must absolutely refrain from participating in the political campaigns of candidates for local, state, or federal office and may generally not engage in substantial lobbying activities
must ensure that its earnings do not inure to the benefit of any private shareholder or individual
must not operate for the benefit of private interests such as those of its founder, the founder’s family, its shareholders or persons controlled by such interests
must not operate for the primary purpose of conducting a trade or business that is not related to its exempt purpose, such as a school’s operation of a factory
may not have purposes or activities that are illegal or violate fundamental public policy.

Certain activities permissible for 501(c)(3) public charities give rise to excise taxes if conducted by a private foundation. For instance, lobbying activity by a private foundation, whether or not substantial, gives rise to a taxable expenditure. Transactions with a private shareholder or individual, whether or not they result in inurement of net earnings, may result in the imposition of self-dealing taxes on individuals benefiting from certain transactions with a foundation. The conduct of an unrelated business (unless a functionally related business), whether or not as the primary purpose, may give rise to a taxable excess business holding, as may other excessive ownership in a business enterprise.

Jeopardizing investments

Jeopardizing investments generally are investments that show a lack of reasonable business care and prudence in providing for the long- and short-term financial needs of the foundation for it to carry out its exempt function. No single factor determines a jeopardizing investment.

No category of investments is treated as an intrinsic violation, but careful scrutiny is applied to:

Trading in securities on margin,
Trading in commodity futures,
Investing in working interests in oil and gas wells,
Buying puts, calls, and straddles,
Buying warrants, and
Selling short.

In deciding whether the investment of an amount jeopardizes carrying out the exempt purposes, a determination must be made on an investment-by-investment basis taking into account the foundation’s portfolio as a whole. The foundation managers may take into account expected returns, risks of rising and falling prices, and the need for diversification within the investment portfolio. To avoid the tax on jeopardizing investments, foundation managers must carefully analyze potential investments and exercise good business judgment.

Whether an investment jeopardizes the foundation’s exempt purposes is determined at the time the investment is made. If the investment was proper when made, it will not be considered a jeopardizing investment even if it later results in loss.

These rules do not relieve any person from complying with any federal or state law imposing any obligation, duty, responsibility or other standard of conduct on the operation or administration of an organization or trust. Nor shall any state law exempt or relieve any person from any standard of conduct provided in these rules.

The tax on jeopardizing investments does not apply to investments originally made by a person who later transferred them as gifts to the foundation. However, if the person receives any consideration from the foundation on the transfer, the foundation will be treated as having made an investment in the amount of the consideration.

The tax on jeopardizing investments does not apply to investments acquired by the foundation as a result of a corporate reorganization nor does the tax apply to investments made before 1970 unless the form or terms of the investments are later changed, or they are exchanged for other investments

Taxable expenditures

A taxable expenditure is an amount paid or incurred to:

Carry on propaganda or otherwise attempt to influence legislation (commonly referred to as lobbying),
Influence the outcome of any specific public election or carry on any voter registration drive, unless certain requirements (explained in Influencing elections and carrying on voter registration drives) are satisfied),
Make a grant to an individual for travel, study, or other similar purposes, unless certain requirements (explained under Grants to individuals) are satisfied,
Make a grant to an organization (other than an organization described in section 509(a)(1), (2), or (3) or an exempt operating foundation) unless the foundation exercises expenditure responsibility with respect to the grant, or
Carry out any purpose other than a religious, charitable, scientific, literary, or educational purpose, the fostering of national or international amateur sports competition (with exceptions) or the prevention of cruelty to children or animals.

See exceptions to taxable expenditures in this legal encyclopedia for examination of transactions ordinarily not treated as taxable expenditures.

Reporting requirements

All private foundations, including nonexempt trusts treated as private foundations, must annually file Form 990-PF, Return of Private Foundation. Forms 990-PF and 1023 (where applicable) are subject to public disclosure

There is an excise tax on the net investment income of most domestic private foundations. Certain foreign private foundations are also subject to a tax on gross investment income derived from United States sources. See the Form 990-PF instructions for more information. This tax must be reported on Form 990-PF, and must be paid annually at the time for filing that return or in quarterly estimated tax payments if the total tax for the year is $500 or more.

In addition, there are several restrictions and requirements on private foundations, including:

restrictions on self-dealing between private foundations and their substantial contributors and other disqualified persons;
requirements that the foundation annually distribute income for charitable purposes;
limits on their holdings in private businesses;
provisions that investments must not jeopardize the carrying out of exempt purposes; and
provisions to assure that expenditures further exempt purposes.

Certain nonexempt trusts that have charitable interests as well as private interests may also be subject to some of the private foundation tax provisions. These trusts must annually file Form 5227, Split-Interest Trust Information Return. See Form 5227 and Form 5227 instructions for more information.

Violations of these provisions give rise to taxes and penalties against the private foundation and, in some cases, its managers, its substantial contributors, and certain related persons. For more information, see Recent Developments Under Chapter 42 or Private Foundation Issues. See Control and Power for a discussion of how the section 4941 self-dealing rules apply to private foundation dealings with disqualified person financial institutions and their financial products and services.

A private foundation cannot be tax exempt nor will contributions to it be deductible as charitable contributions unless its governing instrument contains special provisions in addition to those that apply to all organizations described in 501(c)(3). See Publication 557, Tax-Exempt Status for Your Organization, for examples of these provisions. In most cases, this requirement may be satisfied by reference to state law. The IRS has published a list of states with this type of law. See Revenue Ruling 75-38, 1975-1 C.B. 161.

Definition of Private Foundation

A concept of Private Foundation applicable in the United States: A charitable organization under IRS Section 501(c) (3), typically established by a single individual, family, or company, that receives most of its support from its founders or from investment income earned by an endowment. Private foundations are subject to substantially more restrictive rules than public charities governing their operations, and their donors receive less favorable tax treatment for contributions. If a public charity fails to meet its “public support test” of receiving at least one-third (or in some cases 10% public support if certain facts and circumstances are present) of its income from the public in the form of contributions and grants, it is generally reclassified as a private foundation. See also Public Charity.

Private Foundation